Excerpt: - .....in his favour by the lower appellate court. the appellant, who was put up for election for the union board in his locality, failed to be elected and was appointed as a member of the union board by the district magistrate under section 6, sub-section (3), village self-government act of 1919. the respondents alleged that the appellant was not eligible for appointment because he was not a resident within the union within the meaning of section 7, sub-section (2) of the same act. the courts below found that the appellant was not resident within the union but held that the respondents should fail in the suit because the question whether the appellant was resident within the union was a matter which fell to be determined not by the civil courts but by the tribunal specially designated.....

Judgment:

Derbyshire, C.J.

1. In this case the appellant is appealing from a decision of R.C. Mitter, J., who reversed the decision given in his favour by the lower appellate Court. The appellant, who was put up for election for the Union Board in his locality, failed to be elected and was appointed as a member of the Union Board by the District Magistrate under Section 6, Sub-section (3), Village Self-Government Act of 1919. The respondents alleged that the appellant was not eligible for appointment because he was not a resident within the Union within the meaning of Section 7, Sub-section (2) of the same Act. The Courts below found that the appellant was not resident within the Union but held that the respondents should fail in the suit because the question whether the appellant was resident within the Union was a matter which fell to be determined not by the civil Courts but by the tribunal specially designated under the Village Self-Government Act and the Rules made by the Local Government thereunder. Section 6(3) provides:

Notwithstanding anything contained in Sub-section (2), the Local Government may direct by an order in writing, for reasons to be stated in such order, that not more than one-third of the total number of members of the Union Board shall be appointed by the District Magistrate: Provided that no member shall be so appointed unless he is entitled to be elected as a member of the Union Board under Section 7.

2. Section 7(2) provides:

Every person who is entitled to vote at an election of members of the Union Board and is resident within the union shall be entitled to be a member of the Union Board if duly elected thereto.

Explanation. A person shall be deemed to be 'resident', within a union within the meaning of Sub-section (2) if he ordinarily resides within its limits. No person may be so resident within the limits of more than one union at the same time.

3. Section 101 gives power to the Local Government to make rules to carry out the purposes of the Act and Sub-section (2), in particular, to make rules 'determining the manner and time of appointment or election of members of Union Boards'. Those rules are headed:

Rules for the election and appointment of members and Presidents of Union Boards and the election of Vice-Presidents.

4. As regards the registration of voters, Rule 3 provides that the Circle Officer shall cause to be prepared for each union, ward by ward, a register of persons qualified to vote. Rule 6 provides that persons who claim to be on the register and persons who object to other persons being on the register may have their objections heard. The claims and objections are heard by the Circle Officer. The last part of Rule 6 says:

They shall be enquired into by the Circle Officer on a date to be previously intimated to the persons concerned. The decision of the Circle Officer shall be final.

5. Rule 7 provides:

The register of voters as amended after the decision of claims and objections under Rule 6 shall be considered to be the final register of persons entitled to vote at the election, and no person whose name does not appear in such register shall be permitted to vote.

6. Rule 9 provides:

The Circle Officer shall ascertain whether all the candidates are duly qualified under Sub-section (2), Section 7 of the Act and his decision on this point shall be final.

7. Rule 10 says:

If the number of candidates is not greater than the number of vacancies, the Presiding Officer shall at once declare such candidates to be duly elected.

8. Rule 11 provides:

If the number of candidates exceeds the number of vacancies, a list showing, ward by ward, the names of candidates who are duly qualified shall be published in each ward in a conspicuous place and by beat of drum at least one week before the date fixed for the election.

9. It is common ground in this case that the name of the appellant does appear on the list showing the names of candidates duly qualified. Rule 27 provides that as soon as possible after the receipt of the list of elected members referred to in Rule 26, the District Magistrate shall appoint members, if any, under sub-ss. (3) and (4), Section 6 of the Act. Rule 38 provides:

Save as otherwise provided, all disputes arising under these rules shall be decided by the District Magistrate or under his general or special orders by the Sub-divisional Magistrate within whose jurisdiction the union lies.

10. Now, it has been contended by the appellant that as his name appeared on the list of candidates duly qualified provided by Rule 11 and as that list was prepared by the Circle Officer under Rule 9 which says that 'his decision on this point shall be final' it is not open to the ordinary Courts to discuss the matter. Against that there is the reply that the jurisdiction of the ordinary Courts cannot be ousted. One has to remember that the franchise was given under it for the first time that new rights were created which did not exist before the passing of this Act and they exist only by virtue of the passing of it. In Bhaishankar Nanabhai v. Municipal Corporation of Bombay (1907) 31 Bom 604 where the validity of a contested election held under Section 33, Municipal Act was concerned, it was contended that the jurisdiction of the High Court had been ousted by the jurisdiction given to the Chief Judge of Bombay Small Causes Court to deal with and determine the validity of the election. It was said that if there was such an ouster it was invalid in law. Sir Lawrence Jenkins, then the Chief Justice of Bombay, said at p. 609:

But under Section 33 the Chief Judge has jurisdiction to determine the validity of a contested election, and so he is the tribunal appointed by the Act for that purpose. But where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary Courts for they never had any; there is no change of the old order of things; a new order is brought into being. Here not only is the Chief Judge appointed the tribunal, but it also is expressly provided that his order shall be conclusive, and that every election not called in question in accordance with the provisions of Section 33 shall be deemed to have been to all intents and purposes a good and valid election.

11. In my view the principle which is laid down there applies to this case. A new set of rights has been given; a tribunal has been appointed for the purpose of ascertaining who is entitled to those rights and the way in which they shall be exercised. By Section 6 a member to be eligible for appointment must be entitled to be elected as a member of the Union Board under Section 7. Section 7 provides:

Every person who is entitled to vote at an election of members of the Union Board and is resident within the union shall be entitled to be a member of the Union Board if duly elected thereto.

12. Now, it is quite clear from Rule 7 that the only person who can determine who is entitled to vote at an election of members of a Union Board is the Circle Officer. He determines that when he prepares his register under E. 6. Rule 6 says that his decision shall be final. Rule 7 emphasizes that by saying that:

The register of voters as amended after the decision of claims and objections under Rule 6, shall be considered to be the final register of persons entitled to vote at the election, and, no person whose name does not appear in such register shall be permitted to vote.

13. Thus one of the qualifications which an appointed member must possess, namely, that he is entitled to vote is determined exclusively and finally by the Circle Officer under Rr. 6 and 7. It is said that the question whether a man is resident within the union is a somewhat different matter. In my view, the same tribunal namely, the Circle Officer, is the person to decide the question of residence under Rule 9. Rule 9 again provides that his decision shall be final. The name of the appellant in this case appeared on the list of candidates duly qualified under Sub-section (2), Section 7. The tribunal and authority appointed by the Act to determine that matter decided that his name should be placed on it and it has been placed on it after proper proceedings taken in accordance with the Act. I am of the opinion, therefore, that the appellant was duly and properly qualified to be appointed a member of the Board under the provisions of Section 6(3). To have held otherwise would, in my view, be to decide against the plain intent and purpose of this Act which is that the tribunal deciding the questions arising under it should be the exclusive tribunal to decide those questions. These elections were held in April 1934 and it is now the end of February 1937-nearly three years afterwards. The matter has been litigated through Courts in the ordinary way and it has taken nearly three years. There will be a fresh election at the end of three years from the last election, namely in two months' time. In my view it was clearly never the intention of the Legislature that questions of this sort should fall to be decided in the ordinary Courts where such a lapse of time can take place before they are finally settled. It happens that in this instance the question is not of permanent importance because an Act was passed in 1935 called the Bengal Village Self-Government (Amendment) Act, 1935 which provides by Section 8:

After Section 17 of the said Act the following sections shall be inserted, namely:

17-A. No election of a member of a Union Board shall be called in question in any Court, and no Court shall grant an injunction: (i) to postpone the election of a member of a Union Board or, (ii) to prohibit a person declared to have been duly elected under this Act, from taking part in the proceedings of a Union Board of which he has been elected a member, or (iii) to prohibit the members formally elected or appointed for a Union Board from entering upon their duties.

14. The Legislature in its wisdom to avoid cases such as the present one has enacted those provisions. The result is that this Letters Patent Appeal arising out of appeal from Appellate Decree No. 1537 of 1935 must be allowed, the decree of R.C. Mitter, J. must be set aside and that of the Subordinate Judge dated 30th July 1935 restored with costs here and before Mr. R.C. Mitter.